United States v. Shelby PettiesUnited States v. Shelby Petties
Appeal from the United States District Court for the Eastern District of North Carolina at Raleigh. James C. Dever III, District Judge. (5:15-cr-00009-D-1)
Argued: March 11, 2022
Decided: August 1, 2022
Before MOTZ, HARRIS, and QUATTLEBAUM, Circuit Judges.
Vacated and remanded with instructions by published opinion. Judge Harris wrote the opinion, in which Judge Motz and Judge Quattlebaum joined.
ARGUED: Jennifer Claire Leisten, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. Lucy Partain Brown, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: G. Alan DuBois, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. G. Norman Acker, III, Acting United States Attorney, David A. Bragdon, Assistant United States Attorney, Kristine L. Fritz, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
This appeal turns on a plea agreement between the defendant, Shelby Sherrod Petties, and the government. In that agreement, the government promised to dismiss two of the three counts on which Petties had been indicted. In exchange, Petties agreed to plead guilty to the remaining count: committing a crime of violence – kidnapping – while having failed to register as a sex offender. But under the parties’ conditional plea agreement, Petties expressly reserved the right to appeal his conviction on the ground that kidnapping is not categorically a crime of violence.
Petties did appeal, and the government conceded that under intervening precedent, he was correct. We therefore vacated the judgment against Petties and remanded to the district court. The district court then entered the decision at issue on appeal: Over Petties‘s objection, the court allowed the government to proceed against Petties on one of the charges previously dismissed under the plea agreement, for failure to register as a sex offender.
On appeal, Petties challenges that decision and his resulting conviction, arguing that his plea agreement barred the government from pursuing the dismissed charges. We agree. Accordingly, we vacate Petties‘s conviction and sentence, and remand to the district court with instructions to order his release from federal custody.
I.
In 2015, a federal grand jury indicted Petties on three counts. Count One charged him with failure to register as a sex offender, in violation of
After the district court denied that motion, the parties entered into a plea agreement. Petties entered a conditional plea of guilty to Count Two, one of the
In February 2017, as contemplated by the plea agreement, Petties appealed his conviction on the ground that the district court had erred in denying his motion to dismiss, asking this court to vacate the judgment of conviction and sentence. As in his motion to dismiss, Petties argued that
Before its supplemental brief was due, the government moved this court to vacate the district court‘s judgment and remand the case to the district court. In light of Dimaya and Davis, the government explained, it was conceding that kidnapping under
On remand, Petties moved for immediate release from custody. There was no legal basis for his continued detention, Petties argued, because his judgment of conviction had been vacated and the plea agreement barred the government from pursuing the counts it had agreed to dismiss. The government took a different view, arguing that it had been relieved of its obligations under the plea agreement once Petties‘s Count Two conviction and the district court judgment were vacated. It also believed that Petties‘s guilty plea to Count Two‘s
The district court denied Petties‘s motion for release. Order, United States v. Petties, No. 5:15-CR-9-D (E.D.N.C. Feb. 24, 2020), ECF No. 100; J.A. 238–59. The court began by explaining where the proceedings thus far had left things. By vacating its original judgment, the court explained, the Fourth Circuit had “reinstated the indictment and reset the case.” J.A. 244. The two
The court then turned to the key question in this case: whether the parties’ plea agreement allowed the government to prosecute Petties on previously dismissed charges if his Count Two conviction was vacated on appeal. The district court concluded that the plea agreement did not bar such a prosecution, mostly because it did not say so expressly. And in any event, the district court reasoned, the government no longer was bound by the agreement, because Petties had repudiated it when he moved for release instead of pleading guilty to Count Two, as promised – except that now, Petties was obliged to plead to Count Two‘s lesser included offense of failure to register. Finally, in the alternative, the court granted the government‘s motion to reinstate Count One pursuant to
To preserve his ability to appeal, Petties pleaded not guilty to all three counts of failure to register and proceeded to a bench trial where he declined to present a defense. The district court found him
Petties timely appealed the district court‘s judgment.
II.
On appeal, Petties contends that the district court erred on remand by allowing the government to prosecute him for charges previously dismissed when he pleaded guilty to Count Two. Contrary to the district court‘s reading, Petties argues, the plea agreement, which expressly reserves his right to challenge his Count Two conviction, does not allow the government to proceed against him on a dismissed charge if his appeal is successful. Nor, Petties argues, can he be said to have repudiated his end of the bargain; he agreed to plead guilty to Count Two‘s
We take those arguments in order below. We agree with Petties that his plea agreement foreclosed his prosecution on the previously dismissed failure to register charge, and that he cannot be said to have repudiated that agreement. And the government does not dispute that if Petties‘s prosecution is barred by the plea agreement, it may not proceed against him by way of reinstatement under
A.
We first consider whether the parties’ plea agreement permitted the government to pursue charges dismissed in exchange for Petties‘s conditional guilty plea in the event that Petties successfully challenged his conviction on appeal. We review the district court‘s interpretation of the plea agreement de novo, United States v. Wood, 378 F.3d 342, 348 (4th Cir. 2004), and conclude that the agreement does not permit such a prosecution.
Plea agreements are “grounded in contract law,” and we employ “traditional principles of contract law” as a guide to their interpretation. United States v. Edgell, 914 F.3d 281, 287 (4th Cir. 2019) (internal quotation marks omitted); see Wood, 378 F.3d at 348. But we give plea agreements “greater scrutiny” than we apply to ordinary commercial contracts because of the context: a defendant‘s waiver of his constitutional right to trial, induced by the government‘s commitments in the plea agreement. See Edgell, 914 F.3d at 287 (quoting United States v. Warner, 820 F.3d 678, 683 (4th Cir. 2016)); United States v. Harvey, 791 F.2d 294, 300 (4th Cir. 1986). As a result, the law governing the interpretation of plea agreements is an “amalgam of constitutional, supervisory, and private [contract] law concerns,” which “require holding the Government to a greater degree of responsibility than the defendant” for any “imprecisions or ambiguities” in those agreements. Harvey, 791 F.2d at 300; see United States v. White, 628 F. App‘x 848, 851 (4th Cir. 2015).
Pursuant to the plea agreement at issue here, Petties gave up his right to go to trial and hold the government to its burden of proof. Instead, he agreed to plead guilty to Count Two of the indictment, charging him with a
Moreover, the government entered into this agreement with full knowledge that Petties might appeal – and appeal successfully – his conviction on Count Two. To be sure, we will enforce plea agreements even in the face of unanticipated changes in circumstances, on the theory that the parties have assumed the risk of such changes. See Edgell, 914 F.3d at 289; United States v. Archie, 771 F.3d 217, 222 (4th Cir. 2014). But here, an appeal was not unanticipated. Instead, the possibility of a successful appeal was a contingency expressly contemplated by the parties and their agreement, as reflected in Petties‘s conditional plea to Count Two and his reservation of the right to appeal on the crime of violence issue. If the government wanted to reserve its right to pursue the failure to register charge should Petties‘s challenge prove successful, it could have included language to that effect in the agreement – as the government often does. See, e.g., United States v. Sayer, 748 F.3d 425, 431 & n.4 (1st Cir. 2014) (describing plea agreement in which defendant entered conditional plea to cyberstalking and government expressly “reserved the right” to reinstate and prosecute a dismissed charge if the defendant “successfully challenges his cyberstalking conviction“).6 Or it could have required Petties to plead guilty to Count One – the failure to register charge – along with his conditional plea to Count Two. But it did neither. And as a result, its plea agreement prescribed that if Petties lost his appeal, he would stand convicted on Count Two – but that if he won, the government could not pursue the other charges in the indictment.
That understanding puts us in agreement with the Ninth Circuit in Sandoval-Lopez, which enforced against the government a plea agreement promising to dismiss certain drug-trafficking charges in exchange for guilty pleas to related firearm charges. 122 F.3d at 798. After the defendants successfully challenged their firearm convictions in collateral proceedings, the government sought to prosecute them on the dismissed drug-trafficking
had not made their pleas conditional, the government still was on general notice that changes in the law may render their convictions invalid. It nevertheless “chose to take the pleas on [the gun] counts alone” and “failed to provide for any right” to pursue the dismissed charges should the gun count convictions be vacated, id. at 801-02, leaving it with no right to further prosecute the defendants. So too here. The government “never contracted for” the right to prosecute Petties on failure to register charges, see id. at 800, and so it may not prosecute him now.
In finding to the contrary, the district court relied primarily on what it saw as the absence of an “immunity-on-remand provision” – that is, a provision stating expressly that Petties could not be prosecuted for failure to register if he succeeded on appeal of his Count Two crime of violence conviction. See J.A. 253. But as we have explained, the fairest reading of the agreement is that it does just that: So long as Petties abides by his agreement to plead guilty to Count Two – with an express right to appeal his conviction, and with no further proviso as to the outcome of that appeal – the government promises not to “further prosecute [Petties] for conduct constituting the basis for the Indictment,” J.A. 364, which would include the failure to register offense charged in Count One. And even if there were some ambiguity on this point, the burden would be on the government, not on Petties, to clear it up. See United States v. Barefoot, 754 F.3d 226, 246 (4th Cir. 2014) (explaining that ambiguities in plea agreement are “construed against the government as its drafter“); Harvey, 791 F.2d at 300 (holding government “to a greater degree of responsibility than the defendant” for imprecision in plea agreements).
On appeal, the government emphasizes an alternative argument: Even if the plea agreement required it to forgo further prosecution of Petties, the government contends, that obligation was discharged under the “frustration of purpose” doctrine when we vacated Petties‘s Count Two conviction. That doctrine, a staple of contract law, provides that if “after a contract is made, a party‘s principal purpose is substantially frustrated without his fault by the occurrence of an event the non-occurrence of which was a basic assumption on which the contract was made, his remaining duties to render performance are discharged.” Restatement (Second) of Contracts § 265 (1981). Here, the government argues, the validity of Petties‘s Count Two conviction was the “basic assumption” of the plea agreement, and the vacatur of that conviction completely defeated the government‘s purpose in entering into the agreement.
But that cannot be right, because, as described above, the very face of the parties’ agreement provides for an appeal of the Count Two conviction: Petties pleaded guilty to Count Two only on the condition that he could challenge the legal validity of that count on appeal. This plea agreement was not made on the “assumption” that Count Two would remain valid; to the contrary, it explicitly contemplated a legal challenge. Perhaps the government underestimated the odds that Petties would prevail on appeal – though recent and pending cases would have made clear that his argument was a substantial one. But “[j]ust as we often enforce plea agreements against criminal defendants even in the face of subsequent, favorable changes in the law, so, too, must we enforce plea agreements that may later prove less advantageous
That Petties‘s plea was conditioned expressly on a right to appeal distinguishes this case from those on which the government relies, United States v. Bunner, 134 F.3d 1000 (10th Cir. 1998), and United States v. Moulder, 141 F.3d 568 (5th Cir. 1998). There, the defendants pleaded guilty to using a firearm in connection with a drug offense, in violation of
B.
We turn next to the district court‘s alternative finding that Petties repudiated the plea agreement, such that it no longer bound the government. As the district court saw it, though the plea agreement initially remained operative on remand, Petties failed to live up to his end of the bargain when he moved for release instead of honoring his commitment to plead guilty to Count Two – this time by pleading to the lesser included offense of failure to register under
We cannot agree. The premise of the district court‘s conclusion is that by agreeing to plead guilty to Count Two, Petties promised to plead guilty not only to the
What Petties agreed to was that he would “plead guilty to Count Two of the Indictment,” J.A. 358, which, in turn, charged him with one offense: a violation of
There is a second and related problem with the government‘s theory. It is “axiomatic” that a guilty plea must be “knowing, intelligent, and voluntary.” See United States v. Fisher, 711 F.3d 460, 462, 464 (4th Cir. 2013). But the premise of the government‘s argument – that a promise to plead guilty to one offense includes separate promises to plead guilty to any lesser included offenses, should the charged offense become legally invalid – appears to be entirely novel; the government has pointed us to no cases endorsing that proposition, and we have found none. So there is no background law that might have alerted Petties (or his counsel) that his promise to plead guilty extended beyond the
C.
Finally, we address the district court‘s decision, in the alternative, to grant the government‘s conditional motion to reinstate Count One pursuant to
Neither party cites case law to aid in our analysis of
At oral argument, the government conceded that if its plea agreement barred it from prosecuting Petties on the previously dismissed charge of failure to register, then it would remain bound by that agreement and could not pursue the charge by way of reinstatement under
III.
For the reasons given above, we vacate Petties‘s conviction and sentence, and remand to the district court with instructions to order his release from federal custody.
VACATED AND REMANDED WITH INSTRUCTIONS